Canadians in ever increasing numbers have begun to embrace the practical concept of a Living Will for several sound reasons, the most important being the heavy burden it removes from family and health providers in times of acute medical crisis or end of life treatment choices. In a world of increasing intrusiveness in our lives, its one facet of our being in which the individual is still able to control his/ her own destiny. At least that was the intent until a British Columbia Supreme Court Justice recently went against the Living Will and family wishes of a terminally ill woman and ordered the care facility to continue life support at the request of a third party.
This was British Columbia, so your immediate reaction is what impact will this have in Ontario? The problem is judges are like lemmings following the Holy Grail of precedent law unmindful of the personal distress and financial consequences of their decision. Here’s the case. You be the judge.
Twenty years ago, while of sound mind and with the consulted agreement of her family, a woman wrote a living will expressly documenting interventions she did not wish to receive if incapacitated. In 2014, she has end stage Alzheimer, has no cognitive skills, unable to communicate, cannot address any aspect of personal hygiene or control bodily functions and most specifically unable to feed herself receiving limited liquid sustinance from facility employee caregivers. The family requested support be terminated but the Institution balked, arguing that to withdraw the spoon feeding of liquids could be construed as an assisted suicide and they also produced a document that referred to a vaguely worded handwritten note from the patient postdating the Living Will expressing a desire for “basic care only”
The judge sided with the facility in direct opposition to the written will of the patient and the concurring sentiment of the family. The judge was wrong for several reasons. A properly constituted Living Will is recognized by the Canadian legal system. Yes, it can be revoked, altered, or rewritten but that was not done in the prescribed format in this case. Further, the judge did not seek health professional advice. Continuing minimal fluid intake has the ability to prolong an unresponsive life for months, even years. Withdrawing the liquid intake would result in painless, peaceful shut down of major organ systems leading to a humane end of life in a matter of a few days thus satisfying the wishes of family and patient. I was professionally placed in this scenario many times and I was grateful the families exercised more sound judgement than the ruling in this case. There is another disturbing aspect to this case. The granting of court standing to third parties especially those with an arguable monetary self interest keeping the patient in their facility has opened a financial can of worms for most families. How many have the deep pockets to sustain Supreme Court challenges to their loved one and their own documented preferences?
There is a solution to avoid all of this. Firstly, a Living Will is vastly different from a Last Will and Testament. I recommend everyone have both but the Living Will is available on line from both Federal and Provincial government sources and they are free services. There must be a statement showing you are of sound mind. Your family doctor or minister or even banker can sign off on this aspect. I strongly recommend your preferences be witnessed by TWO trusted family members or associates. But the key to the document being uncontested is the VERY PRECISE LANGUAGE you include. Spell out the medical issues you wish to address. If there are situations where you do not want CPR, document them, or by default you will be resuscitated. Same applies for long term intubation and respiratory control and tube feeding, As your health changes with ageing, review and renew the Living Will. Remember, in a medical emergency, it will be ambulance personnel most likely first on the scene. Keep your Living Will in your wallet or purse and a second copy on your fridge door. These are the two places paramedics always scan first. Give a copy to your physician especially if he/she has privileges at the hospital where you will be taken. This document has no value in the bottom of a law office drawer or safety deposit box on a holiday weekend! If you already reside in a long term care facility, you with your family should review the facility mission statement with the management to assure your preferences are followed.
We will in an increasingly regulated and intrusive global society. This is one aspect of your life you can control. Just do it right.
By: Dr. David Carll